SPENCER ZIFCAK. First Law Officer vs Second Law Officer: George Brandis Undermines Justin Gleeson (Part 1)

It has become a regrettable pattern in the legal world for Attorney-General, George Brandis, to seek to undermine holders of independent legal offices with whom he has disagreed.

One thinks back only a year, to recall his vociferous attack on Gillian Triggs, the President of the Australian Human Rights Commission. This attack followed from the Commission’s release of an extensively researched report on the severe ill-treatment of children in Australia’s offshore refugee detention centres. The findings were damning. Brandis accused Triggs of bias and then had his head of department offer her a senior position in some other less contentious area of government. To her great credit, she refused the offer.

In a lesser known imbroglio, Brandis sought to remove the Information Commissioner, Professor John McMillan, from his post. Some of McMillan’s freedom of information decisions had caused the Attorney heartache. There was no subtlety in his method. Brandis introduced legislation into the Senate to disband the Office of Information Commissioner in its entirety. Cross bench Senators made it clear that they would not have a bar of the abolition. So, the Attorney starved the Office of funds. McMillan had to slash his staff, vacate his office, and was reduced to working from home. He later resigned.

Now, Brandis has sought to constrain the Solicitor General, Justin Gleeson SC. The Solicitor-General plays a hugely important role in Australia’s legal system. He is the Commonwealth government’s chief legal counsel and adviser.

Plainly, he can’t do his job properly unless the advice he gives, and the arguments he presents to the highest courts in the land, are formulated independently. Independence and impartiality form a crucial part of his raison d’etre.

Brandis has demonstrated consistently that he is not fond of independent advice, particularly when it is inconvenient. So he recently, and quietly, issued a new ‘legal direction’. In short, the direction provides that no government officer or body may any longer refer a question of law to the Solicitor-General without first obtaining the Attorney-General’s consent.

If this were to mean what it says, in theory the Attorney could block the Solicitor-General, who is the Australian Government’s most senior legal counsel, from providing legal opinions to any government agencies whatever.

Of course, that will not happen in practice. In most cases, the Attorney will provide his consent for the Solicitor-General to provide his expert advice to Commonwealth officers and agencies that request it. The exception, however, could be in cases where the Attorney-General determines that the Solicitor-General may provide advice contrary to the Attorney’s political or governmental interests.

The legal directive, therefore, constitutes a potentially severe incursion upon the Solicitor General’s authority and independence. One way of ensuring that a Solicitor-General does not get in the way of an Attorney’s legislative or executive agenda is to freeze him or her out. To do that is to strike at the rule of law.

A closer look at what has happened, however, discloses that the Attorney’s directive may rest upon uncertain foundations. The matter is legally complex so what follows is necessarily simplified.

Section 12 of the Law Officers Act 1964 sets out the functions of the Solicitor General. First, the Solicitor-General may act as legal counsel for a range of Commonwealth officers and agencies. These include the Commonwealth, a Minister, an officer of the Commonwealth, a person being sued on behalf of the Commonwealth or a body established by an Act.

Secondly, the Solicitor-General may provide his or her opinion to the Attorney-General on questions of law referred to him or her by the Attorney-General. S(he) may also carry out other functions as legal counsel as the Attorney-General requests.

Legal directions issued by the Attorney-General are subject to the provisions of governing legislation. So, in this case, the Attorney-General’s legal direction providing that no matter may be referred to the Solicitor-General without his consent is subject to the provisions of the Law Officers Act.

The Attorney’s legal directive is consistent with the second of the Solicitor General’s legislated functions as noted above. But it cannot apply to the first. In other words, the Solicitor-General will continue to act as legal counsel for a very wide range of government officers and agencies including, for example, Ministers and their Departments.

It is a natural part of the function of senior legal counsel to provide legal and strategic advice to their clients. Once the Solicitor-General is engaged as legal counsel for a designated entity, therefore, the requirement of the Attorney-General’s consent to the provision of legal advice associated with and in the course of litigation is inapplicable.

Next, the kind of legal direction issued by the Attorney-General in this instance is unprecedented. According to the Office of Legal Services Coordination, the Office responsible for managing legal directions, these directives set out the requirements for sound practice in the provision of legal services to the Australian Government.

That is, ‘they offer tools to manage legal, financial and reputational risks to the Australian government’s interests’. The directions, therefore, are designed to promote the provision of accomplished legal advice and advocacy to Australian government agencies.

The Attorney-General’s legal direction with respect to the necessity for an agency to obtain consent prior to seeking the Solicitor General’s opinion is of a qualitatively different kind. It bears no relationship to the underlying rationale for the issue of legal directions. It has nothing to do with handling claims or conducting litigation. Indeed, it is likely to prejudice the efficacy of the Commonwealth’s high-level legal work.

Interestingly, however, the direction is subject to disallowance in the Senate. Its unprecedented nature and practical cost may provide a powerful reason for the Senate to reject it.

Finally, it is well known that tensions have existed recently between Senator Brandis and Justin Gleeson. Among other things, these have arisen because of disagreements between the two concerning an Australian Taxation Office ruling, the legalities of the proposed plebiscite on gay marriage, and the appropriateness of Governor-General’s proroguing of Parliament for two days to make way for a double dissolution election.

Senator Brandis has said that the reason for his directive was to overcome uncertainty about the procedure for briefing the Solicitor-General.

It is far more likely that disagreements of a more personal kind lie behind this assault on the independence of a holder of a high government office than any procedural technicalities do.

Spencer Zifcak is Allan Myers Professor of Law at the Australian Catholic University and formerly a Vice President of the International Commission of Jurists (Australian Section)